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JUDGMENT:
The Plaintiff’s claim is for the
following:
1.
“The 1st
and 2nd Defendants
the sum of USD$130,000 paid to
the 2nd Defendant on
behalf of the 1st
Defendant being 20% of the
contract sum for the supply of
alluvial gold dust to the
Plaintiff which the Defendants
never supplied.
2.
The
sum of USD$20,174.86 from
Defendants being additional
expenses incurred by the
Plaintiff at various times and
on diverse days sending its
representatives to Dubai, London
and Ghana.
3.
Damages for fraud and breach of
contract against the Defendants.
4.
Interest on the sum of
USD$150,174.86 from 12th
July, 2007 till date of final
payment.
5.
Interest on the said sum of
USD$20,174.86 from 12th
July 2007 to date of final
payment.”
By its pleadings, Plaintiff
claims that it entered into a
sale and purchase agreement with
the Defendants on 21st
June 2007based on
representations made by the 2nd
Defendant to Plaintiff’s agent
in Ghana, for the supply of
alluvial gold dust from Ghana.
It was agreed that 1st
Defendant would supply a total
of 2,400 kilograms of the
alluvial gold dust to Plaintiff
commencing with an initial trial
shipment of 50 kilograms. The
agreement provided for a 20%
down payment in advance of each
shipment and for the trial
shipment. Plaintiff agreed to
pay a deposit of US$45,000 and a
further US$85,000 within a week
of shipment. On 26th
June 2007 representatives of the
Plaintiff left their base in
London to Dubai to receive the
consignment of gold to be
shipped by the 2nd
Defendant as per the contract.
But contrary to the express term
of the agreement, while the said
representatives were in Dubai on
27th June 2007, the 2nd
Defendant informed them that the
remainder of the deposit of
US$85,000 should be paid before
the goods could be shipped.
Plaintiff also averred that
contrary to the clear
instructions given to 2nd
Defendant the goods were shipped
through DHL, at their offices at
the Kotoka International
Airport, Accra. On 3rd
July 2007 the equivalent of
US$85, 000 was paid to 2nd
Defendant in cash as demanded by
him before the shipment.
Plaintiff averred further that 2nd
Defendant and DHL sent the goods
under “general cargo” and not
designated as high value goods.
Plaintiff therefore contends
that the conduct of the
Defendants particularly the 1st
and 2nd Defendants
amount to fraud on the
Plaintiff. Plaintiff also
contends that apart from the sum
of US$130,000 paid to
Defendants, Plaintiff has
through its representatives
expended a further sum of about
US$20,174.86 being expenses for
the purchase of air tickets and
other incidental travel expenses
relating to the botched gold
business with Defendants.
Defendants denied Plaintiff’s
assertions and averred that the
transaction was evidenced in
writing and there was no
agreement to ship the gold
through the “Emirates Airline
duly insured”. In further denial
the Defendants say that the
parties agreed to send the gold
through the DHL. The Defendants
also averred that they caused a
letter to be written to the
Plaintiff demanding the
outstanding balance. It is
Defendants’ contention that
Plaintiff is perpetuating fraud
on the Defendants to avoid
paying the outstanding balance.
Defendants particularized the
fraud as follows:
(a)
Receiving more quantity of gold
and paying less for it.
(b)
Denying the goods despatched to
the plaintiffs as per agreement
is gold when the sample tested
positive of gold.
(c)
The
keys to the sealed box were kept
by the plaintiff/his agents
after the sample was fetched.
(d)
The
seal to the boxes at all
material times had not been
broken both in Ghana and in
Dubai.
Defendants have thus
counterclaimed for the
following:
(a)
An
order directed at the plaintiff
to pay USD$520,000.00 being 80%
of the amount remaining unpaid
for the supply of gold.
(b)
Damages for breach of contract.
(c)
Cost
(d)
Any
other order this Honourable
Court may deem fit to make.
Commencement of hearing of the
case was fixed for 5th
May, 2009. Plaintiff and their
Counsel however absented
themselves on a number of
occasions with one excuse or the
other. On 2nd July,
2009, the case was struck out
for want of prosecution.
Defendants however pursued their
counterclaim. This judgment is
therefore in relation to the
Defendants’ counterclaim.
It is trite learning that in
situations like this, the
Defendant herein will wear the
shoes of a plaintiff. The
Supreme Court, per Brobbey JSC,
in the case of In Re:
Ashalley Botwe Lands; Adjetey
Agbosu & Ors v. Kotey & Ors
[2003-2004] SCGLR 420
reiterated the position of the
law that it is the duty of the
plaintiff who took the defendant
to court to prove what he
claimed he is entitled to from
the defendant. However, if the
court has to make a
determination of a fact or of an
issue and that determination
depends on evaluation of facts
and evidence, the defendant must
realise that the determination
cannot be made on nothing. If
the defendant desires the
determination to be made in his
favour, then he has the duty to
help his own cause or case by
adducing before the court such
facts or evidence that will
induce the determination to be
made in his favour.
The Supreme Court pointed out
that the logical sequel to this
is that if he leads no such
facts or evidence, the court
will be left with no choice but
to evaluate the entire case on
the basis of the evidence before
the court, which may turn out to
be only the evidence of the
plaintiff. If the court chooses
to believe the only evidence on
record, the plaintiff may win
and the defendant may lose.
Seth Kwapong, 2nd
Defendant, testified for
Defendants, and his evidence was
that the transaction was covered
by an agreement (Exhibit “1”).
Exhibit 1 covered terms and
conditions covering the
transaction, particularly the
trial shipment of 50 Kilograms.
Mr. Kwapong’s evidence was that
the total price for the 50kgs of
gold was US$650,000 and
Plaintiff paid an amount of
US$130,000 being 20% of the
total price, before shipment was
made. After the Geological
Survey tested and passed the
sample as being genuine,
Plaintiff paid the amount of
US$130,000. Plaintiff signed a
“Satisfactory Note” which was
tendered in evidence as Exhibit
“2”. Defendants are therefore
claiming the balance of 80%
being US$520,000.00
By the provisions of section
21 (b) (i)
of the Evidence Decree,
a Judge may find that the
evidence of the party with the
right to begin has so
effectively established the
basic facts that a reasonable
mind must necessarily conclude
that their existence is more
probable than their
non-existence. Where this
situation arises, the Judge has
to find that the resulting
presumed facts have been
established; that is, a prima
facie case has been established
in favour of the plaintiff or
the person on whom lies the
burden of persuasion.
As already indicated, Plaintiff
was not represented in court and
therefore P.W.1 was not
cross-examined. There is
abundant case law on the effect
of not cross examining a
witness. In the case of
Fori v. Ayirebi [1966] GLR 627
SC, at 647,
it was held that:
“The law is that when a party
made an averment, and that
averment is not denied, no issue
is joined on that averment, and
no evidence need be led. Again,
when a party gives evidence of a
material fact and is not
cross-examined upon it, he needs
not call further evidence of
that fact.”
This principle was further
enunciated by Brobbey J (as he
then was) in the case of
Hammond v. Amuah [1991] 1 GLR 89
at 91
as follows:
“The law is quite settled that
where a party makes an averment
and that averment is not denied
no issue is joined and no
evidence need be led on that
averment. Similarly, when a
party has given evidence of a
material fact and is not
cross-examined upon it, he need
not call further evidence on
that fact. See Fori v Ayirebi
(Supra). Indeed it was held in
the case of Quargraine v. Adams
[1981] GLR 599, CA that where a
party made an averment and his
opponent failed to cross-examine
on it, the opponent will be
deemed to have acknowledged sub
silentio, that averment by
failure to cross-examine.”
Similarly, in
Takoradi Flour Mills v. Samir
Faris [2005-2006] SCGLR 882,
Ansah JSC referred to the case
of
Tutu v Gogo, Civil Appeal No.
25/67, dated 28th
April 1969, Court of
Appeal unreported; digested in
1969 CC 76,
where Ollenu JA said that:
“In law, where evidence is led
by a party and that evidence is
not challenged by his opponent
in cross-examination, and the
opponent did not tender evidence
to the contrary, the facts
deposed to in the evidence are
deemed to have been admitted by
the party against whom it is
led, and must be accepted by the
Court”.
In my opinion, Defendants have
adduced sufficient evidence to
discharge the burden of proof on
them with regards to their 1st
Claim. Mr. Kwapong has adduced
both oral and documentary
evidence t o support Defendants’
assertions and his evidence
stands unchallenged. Mr.
Kwapong led cogent and credible
evidence to prove Defendant’s
case, and I believe him. I will
therefore give Judgment in
favour of the Defendants on the
four corners of Mr. Kwapong’s
evidence and order that
Plaintiff pays to the Defendants
the amount of US$520,000 being
80% of the agreed amount unpaid
for the supply of gold.
Defendants are seeking general
damages for breach of contract.
It is trite learning that
damages are the normal remedy
for a contracting party who
suffers as a result of a breach
of contract by the other party.
In the instant case, I do not
have any doubt in my mind that
Plaintiff has breached the terms
of Exhibit “1”. in not paying
the balance of US$520,000 to
Defendants. As already
indicated, Plaintiff did not
adduced any evidence to rebut
the evidence of Mr. Kwapong.
In the case of Delmas Agency
Ghana Ltd v. Food
Distributors International Ltd
[2007-2008] SCGLR 748, it
general damages is such as the
law will presume to be the
natural or probable consequence
of the Defendant’s act. It
arises by inference of the law
and therefore need not be proved
by evidence. The law implies
general damage in every
infringement of an absolute
right.
The catch however is that only
nominal damages are awarded.
Where the Plaintiff has suffered
a properly quantifiable loss, he
must plead specifically his loss
and prove it strictly. I will
therefore find that Defendants
are entitled to damages and
award Defendants GH¢5,000.00
Defendants have alleged fraud.
And even though Defendants have
not claimed any damages for
fraud, I will examine their
allegation. It is not easy to
give a definition of what
constitutes fraud; fraud is
infinite in variety (Reddaway
v Banham [1896] AC 199, at 221).
“Kerr on the Law of Fraud and
Mistake” defines fraud as
follows:
“Fraud, in the
contemplation of a Civil court
of Justice, may be said to
include properly all acts,
omissions and concealments which
involve a breach of legal or
equitable duty, trust or
confidence, justly reposed, and
are injurious to another, or by
which an undue or
unconscientious advantage is
taken of another. All surprises,
trick, cunning, dissembling and
other unfair way that is used to
cheat any one is considered as
fraud.”
The decision in the case of
Derry v Peek [1889] 144 App.
Cas. 337, 374 has settled
what amounts to fraud. In that
case Lord Herschell stated thus:
“Fraud is proved when
it is shown that a false
representation has been made (1)
knowingly, or (2) without belief
in its truth, or (3) recklessly,
careless whether it be true or
false. Although I have treated
the second and third as distinct
cases, I think the third is but
an instance of the second, for
one who makes a statement under
such circumstances can have no
real belief in the truth of what
he states. To prevent a false
statement being fraudulent there
must I think always be an honest
belief in its truth and this
probably covers the whole
ground, for one who knowingly
alleges that which is false has
obviously no such honest
belief.”
A party who alleges fraud must
clearly and distinctly prove the
fraud he alleges. It is trite
learning that even in civil
action, a higher standard of
proof is required than that
required in proving ordinary
matters. “A civil court”,
said Denning L.J., “when
considering a charge of fraud
will naturally require a higher
degree of probability than that
which it would require if
considering whether negligence
were established.” (Baxter
v Baxter [1950] 2 ALL; ER, 458)
The onus probandi is
therefore upon Alkebulan Ltd and
the other Defendants herein to
prove that Plaintiff is indeed
perpetuating fraud on them.
It is my opinion that Defendants
did not satisfy the required
standard of proof because they
did not adduce sufficient
evidence to convince the Court
that Plaintiff made false
representations to them knowing
that they were false. According
to Lord Herschell (Derry v.
Peek Supra), a false
statement which a person ought
to have known was false, cannot
be said to be honestly believed
in. “A consideration of the
grounds of belief”, said Lord
Herschell, “is no doubt an
important aid in ascertaining
whether the belief was really
entertained. A man’s mere
assertion that he believed the
statement he made to be true is
not accepted as conclusive proof
that he did so. There must be
such an absence of reasonable
grounds for his belief as in
spite of his assertion to carry
conviction to the mind that he
has not really the belief which
he alleges.” “The test is”,
said his Lordship, “whether a
reasonable man would be likely,
under the circumstances, so to
believe.”
Defendants have not proved that
Plaintiff is perpetuating fraud
as per the particulars provided,
and I will so find. Defendant
however is not seeking any
damages for fraud.
In Summary, I will hold that
Defendants are entitled to their
claims and order that Plaintiff
pays the amount of US$520,000.00
to Defendants. I will also
award general damages of GH¢5,000.00
against Plaintiff for breach of
contract.
Costs assessed at GH¢2,000.00
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
ALI ABDUL SAMAD -
DEFENDANTS
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